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VOLUME 6 - CHAPTER 66
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66.5 Particular Attempts

    66.5.1 Attempted Possession As Lesser Included Offense Of Possession For Sale Or Distribution
    66.5.2 Attempted Possession Of Controlled Substance: Defense Theory That Defendant Did Not Believe The Substance To Be A Controlled Substance
    66.5.3 Attempted Driving Under The Influence As A Lesser Included Offense Of Driving Under The Influence
    66.5.4 Manufacture Of Controlled Substance: Defense Theory That Attempt Is Lesser Included Offense
    66.5.5 Attempt To Commit A Strict Liability Offense Requires Intent To Bring About The Prescribed Result
    66.5.6 No Crime Of Attempted Felony Murder

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    See FORECITE National™ 88.5.2 [Attempt: Impossibility As Defense Theory To Attempted Purchase Of Controlled Substance]; see also FORECITE National™ 66.5.1 [Attempted Possession As Lesser Included Offense Of Possession For Sale Or Distribution].

See generally, FORECITE National™ 305.1.18 [Attempts].

See generally, FORECITE National™ 66.1.8 [Attempt: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: Attempted possession of a controlled substance does not require proof that the substance was in fact a controlled substance. (See Seeney v. U.S. (DC App. 1989) 563 A2d 1081, 1083-84.) However, the defendant must believe that the substance was some kind of controlled substance. (See Smith v. Commonwealth (VA 1993) 432 SE2d 1, 2 [purchase of noncontrolled substance which defendant subjectively believes is controlled substance can support conviction for attempted possession of controlled substance provided that government proves defendant's subjective intent to purchase actual narcotics beyond reasonable doubt]; Grill v. State (MD 1995) 651 A2d 856, 857-58 [evidence that defendant purchased what she believed to be heroin sufficient to support conviction for common-law attempt to possess controlled dangerous substance, though substance she actually bought was not heroin]; State v. Frederickson (OR 1988) 757 P2d 1366, 1369 [purchaser of cocaine from undercover police officer could not be guilty of delivery of controlled substance, she was guilty of attempted possession of controlled substance, a lesser included offense]; CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.31, comment [Enlistment Of A Minor To Distribute A Controlled Substance D.C. Code 33-547] p. 333 (Bar Association of the District of Columbia, 4th ed. 1993).)

See generally, FORECITE National™ 305.1.18 [Attempts].

See generally, FORECITE National™ 66.1.8 [Attempt: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: A California court held that where the defendant attempted to start the car and it rolled 15-20 feet but never started, the jury could have convicted the defendant of either driving under the influence or attempted driving under the influence. (People v. Garcia (CA 1989) 214 CA3d Supp 1, 3 [262 CR 915].)

See generally, FORECITE National™ 305.1.18 [Attempts].

See generally, FORECITE National™ 66.1.8 [Attempt: Federal Circuit Model Instructions And Notes].

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    66.5.4    Manufacture Of Controlled Substance: Defense Theory That Attempt Is Lesser Included Offense

PRACTICE NOTE: The possession of the raw chemicals necessary for manufacture of a controlled substance with intent to manufacture -- but without commencing the manufacturing process -- may be sufficient to convict the defendant of an attempt to manufacture. (See FORECITE National™ 88.9.2.2 [Whether Mere Possession Of Manufacturing Equipment And Chemicals Is Sufficient To Prove Drug Manufacturing]; see also FORECITE National™ 88.9.3.1 [Drug, Controlled Substances Manufacturing: Defense Theory That Assembly Or Creation Process Had Not Begun].)

See generally, FORECITE National™ 305.1.18 [Attempts].

See generally, FORECITE National™ 66.1.8 [Attempt: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: "An attempt to commit a strict liability offense is ... possible only if it is shown that the defendant acted with an intent to bring about the proscribed result." (LaFave & Scott, Substantive Criminal Law (West, 1986) § 6.2, fn. 92.)

See generally, FORECITE National™ 305.1.18 [Attempts].

See generally, FORECITE National™ 66.1.8 [Attempt: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: See State v. St. Hilare (FL 1996) 669 So2d 1135; see also State v. Robinson (KS 1994) 883 P2d 764, 767.

    See also FORECITE National™ 66.1.3 [Attempt: Inapplicable To Crimes Based On Negligence].

See generally, FORECITE National™ 305.1.18 [Attempts].

See generally, FORECITE National™ 66.1.8 [Attempt: Federal Circuit Model Instructions And Notes].